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Dumont v. Borders

United States District Court, E.D. California

May 4, 2018

RALPH E. DUMONT, Petitioner,
v.
D. BORDERS, Respondent.

          FINDINGS & RECOMMENDATIONS

          KENDALL J. NEWMAN UNITED STATES MAGISTRATE JUDGE

         I. Introduction

         Petitioner is a state prisoner, proceeding without counsel, with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. Respondent filed a motion to dismiss this action on the grounds that it was filed beyond the statute of limitations contained in 28 U.S.C. § 2244(d). Petitioner filed an opposition. Respondent filed a reply. Subsequently, plaintiff filed two additional oppositions.[1]

         As discussed below, the undersigned recommends that respondent's motion be granted.

         II. Legal Standards

         Rule 4 of the Rules Governing Section 2254 Cases allows a district court to dismiss a petition if it “plainly appears from the face of the petition and any exhibits annexed to it that the petitioner is not entitled to relief in the district court. . . .” Id. The Court of Appeals for the Ninth Circuit has referred to a respondent's motion to dismiss as a request for the court to dismiss under Rule 4 of the Rules Governing § 2254 Cases. See, e.g., O'Bremski v. Maass, 915 F.2d 418, 420 (1991). Accordingly, the court reviews respondent's motion to dismiss pursuant to its authority under Rule 4.

         The Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), which became law on April 24, 1996, imposed for the first time a statute of limitations on petitions for a writ of habeas corpus filed by state prisoners. This statute of limitations provides that, A 1-year period of limitation shall apply to an application for a writ of habeas corpus by a person in custody, pursuant to the judgment of a State court. The limitation period shall run from the latest of -

(A) the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review;
(B) the date on which the impediment to filing an application created by State action in violation of the Constitution or laws of the United States is removed, if the applicant was prevented from filing by such State action;
(C) the date on which the constitutional right asserted was initially recognized by the Supreme Court, if the right has been newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review; or
(D) the date on which the factual predicate of the claim or claims presented could have been discovered through the exercise of due diligence.

28 U.S.C. § 2244 (d)(1).

         III. Chronology

         1. In El Dorado County No. P12CRF0251, petitioner was convicted of driving under the influence of alcohol (“DUI”), and driving with a blood-alcohol level of 0.15 percent or greater, and an allegation that he had a blood alcohol level of 0.15 percent or greater was found true. (Respondent's Lodged Document (“LD”) 1, 2.) “The trial court sustained a strike, three prior prison terms, and two prior DUI conviction allegations.” (LD 2 at 1.) On September 6, 2013, petitioner was sentenced to a determinate state prison term of nine years and eight months, and various fines and fees were imposed. (LD 1, 2.)

         2. Petitioner filed an appeal. On October 14, 2014, the California Court of Appeal modified the penalties, fees, and assessments associated with the imposed fine, but in all other respects, affirmed the judgment. (LD 2.)

         3. Petitioner did not file a petition for review in the California Supreme Court.

         4. On May 21, 2014, [2] petitioner filed a petition for writ of habeas corpus in the California Supreme Court. (LD 3.) On August 13, 2014, the petition was denied by the California Supreme Court. (LD 4.)

         5. On July 20, 2014, petitioner filed a petition for writ of habeas corpus in the California Court of Appeal, Third Appellate District. (LD 5.) The petition was denied on August 14, 2014. (LD 6.)

         6. On July 31, 2014, [3] petitioner filed a petition for writ of habeas corpus in the El Dorado County Superior Court. (LD 7.) On August 14, 2014, the petition was denied. (LD 8.)

         7. On October 30, 2014, petitioner filed a petition for writ of habeas corpus in the El Dorado County Superior Court. (LD 9.) The petition was denied on November 6, 2014, citing In re Clark, 5 Cal.4th 750, 797 (1993). (LD 10.)

         8. On April 15, 2015, petitioner filed another petition for writ of habeas corpus in the El Dorado County Superior Court. (LD 11.) The petition was denied on April 22, 2015, citing In re Clark, 5 Cal.4th 750, 797 (1993). (LD 12.)

         9. On February 16, 2017, petitioner filed a petition for resentencing under Proposition 47 in the El Dorado County Superior Court. (LD 13.) The petition was denied on March 28, 2017. (LD 14.)

         10. On May 7, 2017, petitioner filed a petition for writ of habeas corpus in the California Supreme Court. (LD 15.) The petition was denied on August 9, 2017. (LD 16.)

         11. Previously, on December 9, 2013, petitioner filed a prior federal petition for writ of habeas corpus in which he challenged the same 2013 conviction. Dumont v. Price, No. 2:13-cv-2541 CMK. (LD 17.) On April 3, 2017, the prior federal habeas petition was denied without prejudice based on petitioner's failure to exhaust state court remedies. Id. (LD 18.)

         12. The instant federal petition was constructively filed on August 22, 2017. (ECF No. 1 at 15.)

         IV. Date Limitations ...


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